JAC’s unanimous recommendation will be binding on the President

The government tabled two bills in the Lok Sabha on Monday seeking to replace the collegium system with an independent mechanism for senior judicial appointments, a move aimed at making the process of appointing Supreme Court and high court justices more transparent.

The Judicial Appointments Commission Bill and Constitutional Amendment Bill aim to set up a six-member National Judicial Commission, which will not be able to recommend a judge if two members do not agree and which will also have to consult the state government before making a HC appointment.

The commission will be headed by the Chief Justice of India and will include the two seniormost SC judges, the law minister and two eminent people. Under the existing system, the collegium, or a committee of Supreme Court judges, makes these appointments.

The two independent voices in the commission will be selected by a committee consisting of the Prime Minister, the CJI, Leader of Opposition or leader of the largest opposition party in the Lok Sabha. One of the members will have to be from backward classes, minorities or women.

The bills were introduced in Parliament by the last NDA government in 2004 but failed to get Parliamentary approval in the absence of majority consensus in the two Houses.

The draft of the bill says that the commission will not forward its recommendations to the President if two of its members do not agree with them. But it can forward its recommendation to the President in case only one member opposes it. The President will have the right to ask the commission to reconsider its decision. If the commission unanimously makes a recommendation, the President will have to accept it.

Incorporating the principles of “cooperative federalism”, the bill makes it mandatory to seek the views of the chief minister and the governor before recommending a state appointment.

The bill says the commission will have to ratify the seniormost high court judge as chief justice of the HC and will have the powers to transfer a judge from one high court to another.

The judicial appointments issue was highlighted after former SC judge Markandey Katju wrote in his blog last month that the collegium had recommended the extension of a Madras HC judge’s tenure despite being alerted of corruption allegations against him.